Here’s Johnny. He lives with Cindy and her partner, Betty, his two moms. Johnny was conceived in an artificial insemination between Cindy and the couple’s friend, Jim. Only Jim and Cindy are considered Johnny’s legal parents.
Betty is understandably upset by this, and Cindy is too. They feel they shouldn’t have to choose who gets to be Johnny’s real mom. Yet for both of them to be Johnny’s parents under the law, Jim would be excluded, and they believe that Jim has a right to be recognized as the legal parent of his biological son. This is complicated.
Indeed, the reality for most same-sex couples who want children is a moral and political thicket, with only the Charter of Rights and Freedoms to use as an axe. And there’s been a lot of slashing and burning lately, as the Supreme Court forges a path through the dark wood of social conservatism.
At first glance, a law limiting parental rights to two people appears to be just another branch to be cleared away in this righteous quest. Almost every gay couple that wants to have children must rely on a third party’s participation. A law restricting legal parentage to two people is insensitive to this reality.
Just like marriage legislation before it, subjecting the two-parent law to the Charter’s chopping block is a necessary step towards equality. However, unlike the marriage legislation-which only affected same-sex couples-there are other people who have an axe to grind when it comes to this law, including infertile couples who require a surrogate’s assistance, second-round spouses living with a partner and the latter’s children, and live-in grandmothers and other heavily involved extended family. In all of these cases, a third-parent parent has a similar stake in the matter. When seen in this light, the law loses its discriminatory flavour.
Or maybe not. In all of the examples offered, someone of each gender is involved in the child’s upbringing. Infertile couples don’t require the surrogate’s ongoing participation, whereas some same-sex couples do. Such couples, who consider opposite-sex involvement to be important in a child’s upbringing, are discriminated against by the two-parent law.
The most obvious response to this complaint would be that you don’t need to be a legal parent to be involved in a child’s life. But even if the legal recognition is considered important-as it seems to be for the lesbian couple currently challenging the law-there is a less obvious reason for rejecting such an argument.
In advocating for the right to raise children, gay couples (and other members of society who support this liberty) are rejecting the proposition that there is something “unnatural” about both parents being of the same sex. Yet at the same time, a lesbian couple, by asserting the necessity of recognizing the father as a legal parent, appears to be supporting this very proposition.
You can’t have it both ways. Either there is nothing wrong with having both parents be of the same sex, or there is.
Even if same-sex couples should be able to have it both ways, there is a further concern that should preclude the use of a blunt instrument like the Charter in settling this debate. And that’s Johnny. One need not possess an extensive knowledge of family law in order to realize the serious effect that granting third-party parental rights could have on the child.
Any child who’s experienced a messy divorce is fully cognizant of the tug of war that can ensue when just two parents are involved. Add a third party and you’ve got the family law equivalent of the medieval torture device known as “the rack.”
That’s why it might be best to leave the solution to this issue up to the fine tinkering of the legislature. Sometimes wielding the Charter can result in a loss of limbs.
